UCLA LAW REVIEW
Fighting for a Place Called Home: Litigation
Strategies for Challenging Gentrification
Hannah Weinstein
Abstract
Since the passage of the 1968 Fair Housing Act (FHA), there have been clear legal
tools and strategies for combating segregation and promoting diverse cities and towns.
While the FHA and zoning laws have been used successfully to ensure that formerly allwhite city neighborhoods and towns are accessible to diverse residents, a new problem
is emerging for those who value integrated neighborhoods: the reversal of white flight.
The 2010 Census showed a strong demographic shift of white residents moving back to
the core of cities while black and Hispanic residents are pushed to the cities’ perimeters.
This racialized displacement is called gentrification, and there has been little analysis
of how legal strategies could be used to challenge it in order to ensure that minority
communities receive the benefits of revitalizing city neighborhoods and remain in their
homes.
This Comment will explain the role gentrification plays in many cities and the legal
strategies available for ensuring that cities remain diverse and affordable. It explores
how attorneys can use zoning laws to preserve or create more affordable housing in
cities even before the gentrification of a neighborhood is underway, environmental
impact statements to fight proposed luxury developments that often are built near the
beginning or middle of the gentrification process, and the FHA to preserve affordable
housing and to challenge the building of luxury developments in neighborhoods that
have undergone significant gentrification.
author
Hannah Weinstein graduated with a J.D. from UCLA School of Law in 2014 as a
member of the Epstein Program in Public Interest Law and Policy and the Critical Race
Studies Specialization. In 2013–2014, she was Chief Comments Editor of the UCLA
Law Review, Volume 61.
I am indebted to my coworkers at New York State Tenants & Neighbors and at the Mass
Alliance of HUD Tenants for teaching me about the politics of gentrification; to the
tenant leaders I worked with in Harlem, the Bronx, Brooklyn, Roslindale, Hyde Park,
and Roxbury for graciously allowing me into their lives to witness the personal effects of
gentrification; and to the tenacious legal services attorneys at the Legal Aid Society and
Greater Boston Legal Services for piquing my curiosity in the topic of this Comment.
I am also grateful to Professor Gary Blasi for guiding me throughout the research and
writing of this Comment.
62 UCLA L. Rev. 794 (2015)
Table of Contents
Introduction.............................................................................................................796
I. The Context: City-Situated Affordable Housing..................................798
II. What is Gentrification?................................................................................801
III. The Effects and Harms of Gentrification...............................................805
IV. The Tools to Halt Gentrification..............................................................810
A. A Preemptive Strike: Litigating Zoning Regulations
to Ensure Affordability...............................................................................811
B. Fighting Luxury Development: The Use of Environmental
Impact Statements......................................................................................817
C. Preserving Community Through Litigation: Novel Use
of the Fair Housing Act..............................................................................822
1. The Adverse Impact Theory..............................................................824
2. The Perpetuation of Segregation Theory...........................................828
Conclusion.................................................................................................................831
795
796
62 UCLA L. REV. 794 (2015)
INTRODUCTION1
The fight against housing segregation in America was one of the most
important and contentious struggles in the Civil Rights Movement of the
1960s.2 After decades of government-authorized segregation, the U.S.
Congress passed the Fair Housing Act (FHA)3 in 1968 to prohibit racial
discrimination in housing.4 In early judicial opinions interpreting the FHA,
courts noted that the purpose of the statute was to encourage integrated
housing patterns and to ensure that segregation did not hinder opportunities
for racial minorities.5 The FHA and similar laws have been used ever since to
challenge segregation—especially the existence of all-white suburbs and towns.6
Today, the threat of segregation occurs not only in affluent suburbs and
towns that hope to keep out low-income residents—especially low-income
residents of color—but also in the inner city. Census data from 2010 shows
that white residents are increasing in their share of the population in many
city neighborhoods and are turning neighborhoods from majority-minority to
majority-white.7 The new white residents generally have higher incomes
than the longtime residents of the neighborhood, and their greater household
incomes allow them to pay more in property taxes or in rent.8 These higher
payments then drive up housing prices for their neighbors, and the increased
cost of housing results in longtime residents being unable to afford to
continue living in their homes.9
The process of higher-income residents displacing lower-income ones is
called gentrification. Gentrification often has a racial component—usually
white residents displace residents of color—which results in the resegregation
of city neighborhoods. White, higher-income residents move into a low- or
1.
2.
3.
4.
5.
6.
7.
8.
9.
The title of this Comment was inspired by Tivoli: A Place We Call Home, a 2010 exhibit at the
Brooklyn Historical Society.
Exhibitions, BROOKLYN HISTORICAL SOC’Y,
http://brooklynhistory.org/sitearchive/exhibitions/tivoli.html (last visited Aug. 18, 2014). My
former employer, New York State Tenants & Neighbors, helped organize the tenants at Tivoli
Towers, the complex in Brooklyn the exhibition focused on.
Nikole Hannah-Jones, Living Apart: How the Government Betrayed a Landmark Civil Rights
Law, PRO PUBLICA (Oct. 29, 2012, 12:00 AM), http://www.propublica.org/article/livingapart-how-the-government-betrayed-a-landmark-civil-rights-law.
42 U.S.C. §§ 3601–3631 (2006).
Id.
See, e.g., Otero v. N.Y.C. Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973).
See infra note 100 and accompanying text.
See infra Parts II–III.
See infra Part II.
See infra Part II.
Challenging Gentrification
797
moderate-income neighborhood and drive up prices until the longtime
residents of color are forced out by rising rents or property taxes, resulting in a
heavily white and more expensive neighborhood.
Gentrification should worry social justice activists, housing advocates,
and other city residents for a number of reasons. First, gentrification by
definition devastates the economic and racial diversity of city
neighborhoods.10 For anyone who took the goals of the FHA’s passage
seriously or who cares about keeping cities as diverse enclaves full of
opportunities for all types of residents, this homogenizing process is distressing.
Second, gentrification harms the low- and moderate-income residents that are
displaced during the process. They often suffer physical, mental, and financial
setbacks from being unwillingly displaced. Additionally, displaced residents
often end up living farther from the plethora of jobs in city centers, which
makes it more difficult for them to pull themselves out of poverty.11 Third,
gentrification may increase general environmental pollution because
displaced residents often have to travel farther to their jobs or to visit friends
and family in the old neighborhood.12 In sum, gentrification has the
generalized effects of homogenizing cities and of contributing to pollution
while also having the individualized effect of creating hardships for each
person who has been forced out of her home.
For these reasons, it is important to challenge gentrification to ensure
the continued diversity of American cities and the health and wellbeing of
low- and moderate-income city residents. While organized residents,
government officials, and other policymakers will play crucial roles in fighting
gentrification, attorneys may also be able to use litigation in innovative ways
to aid in the fight. This Comment focuses on litigation strategies for
challenging gentrification, specifically on the sorts of strategies that could be
utilized for preserving the affordable housing in gentrifying neighborhoods
that many low- and moderate-income residents rely on to keep their housing
costs in the city reasonable.
Part I of this Comment describes the types of affordable housing
available in cities—housing that is both the target of gentrifying efforts and
the focus of some antigentrification litigation strategies. Part II explains the
gentrification process and the role of both individual choice and government
or institutional actions in promoting gentrification. Part III details
10.
11.
12.
See infra Part III.
See infra Part III.
See infra Part III.
798
62 UCLA L. REV. 794 (2015)
gentrification’s harmful effects, including the homogenization of city
neighborhoods and the negative health outcomes for displaced residents.
Part IV explores certain legal strategies that can be used to protect lowincome residents and avoid the resegregation of neighborhoods. These legal
strategies include enforcing zoning laws to preserve or create more affordable
housing in cities even before the gentrification of a neighborhood is
underway, using federal and state environmental impact statements (EIS) to
fight proposed luxury developments, and employing the FHA’s prohibitions
on actions that have an adverse impact on racial minorities or that perpetuate
segregation to preserve affordable housing and to challenge the building of
luxury developments in neighborhoods that have undergone significant
gentrification.
I.
THE CONTEXT: CITY-SITUATED AFFORDABLE HOUSING
To understand how this Comment proposes to challenge gentrification,
it is necessary to know a bit about the affordable housing located in the lowincome city neighborhoods that are often targeted for gentrification.13
Affordable housing programs determine in part where low- and moderateincome families live, and the vast majority of buildings in affordability
programs are located in urban areas.14 These affordable housing programs
keep rents lower than the market rate so that current residents can afford their
rent, especially as rents rise around them. Therefore, the programs sustain the
families who must necessarily be displaced for the process of gentrification to
occur.15 Additionally, the buildings in these programs are ripe for private
redevelopment as more expensive residences once their affordability
provisions expire, which is another component of gentrification discussed in
this Comment.16
13.
14.
15.
16.
In this paper, I use the term affordable housing to refer to housing that is a part of some government
program or under some government regulation that keeps rents below what they would likely
rise to in a system without such regulation. This does not necessarily mean that such housing
is actually affordable for many individuals or families. For a beginner- and user-friendly
explanation of affordable housing, see ROSTEN WOO & JOHN MANGIN, CTR. FOR URBAN
PEDAGOGY, WHAT IS AFFORDABLE HOUSING? (Rosten Woo & John Mangin eds.,
2009), available at http://welcometocup.org/file_columns/0000/0011/cup-fullbook.pdf.
See, e.g., CTR. ON BUDGET & POLICY PRIORITIES, HUD RENTAL ASSISTANCE IN RURAL
AND URBAN AREAS (2012), available at http://www.cbpp.org/files/RentalAssistance-Rural
FactsheetandMethodology.pdf.
See infra Part II.
See infra Part II.
Challenging Gentrification
799
Affordable housing programs take place on national, state, and local
levels.17 The national affordable housing programs currently aid almost five
million households.18 National programs—overseen by the Department of
Housing and Urban Development (HUD)—include conventional public housing
that is owned and operated by government Public Housing Authorities,19
Section 236 subsidized housing for which the federal government subsidizes
the interest rates on mortgages of privately owned buildings that owners then
reserve for low- and moderate-income tenants,20 Section 8 vouchers that lowincome residents may use to pay rent in any privately owned building,21 and
the Low-Income Housing Tax Credit Program (LIHTC) under which each
state is provided tax credits to award to low-income housing developers.22
For every national program, eligible tenants must be low-income, defined as
making no more than 80 percent of the median income in their area.23 Some
programs target even more needy families: Tenants can only make 50 percent
of their area’s median income to be eligible.24 Thus, these programs generally
assist those who are working class and poor.
States also have affordable housing programs that may be especially
prevalent in low-income city neighborhoods. For example, Massachusetts
provides state-funded vouchers for low-income tenants,25 and New York provides
low-interest loans, tax exemptions, and government subsidies through the
Mitchell-Lama program in exchange for landlords charging low rents to low17.
18.
19.
20.
21.
22.
23.
24.
25.
See WOO & MANGIN, supra note 13, at 48–79. For example, in one neighborhood of New
York City, there might be a federally funded housing project, a state-subsidized building, and
a city-subsidized inclusionary zoning building with affordable units. See id. at 48, 64, 80.
CTR. ON BUDGET & POLICY PRIORITIES, NATIONAL: FEDERAL RENTAL ASSISTANCE
FACTS (2012), available at http://www.cbpp.org/files/4-13-11hous-US.pdf.
NAT’L HOUS. LAW PROJECT, HUD HOUSING PROGRAMS: TENANTS’ RIGHTS § 1.3.1
(3d ed. 2004).
Id. § 1.3.4.2.
Id. § 1.3.5.1.
Id. § 1.3.11.
Id. § 2.2.1.1. For example, in 2009 the median income for a family of four in the Los Angeles area
was $62,100. WOO & MANGIN, supra note 13, at 22. Thus, if a family of four’s combined
income is $49,680, they will be eligible for housing subsidized by the Department of Housing
and Urban Development (HUD). In Los Angeles, about 1.5 million households are eligible
for HUD-assisted housing. See USA Median Household Income (Mature Support), ARCGIS,
http://www.arcgis.com/home/webmap/viewer.html?services=da76de09076b4959ad005e1dc
2c48049 (last updated Jan. 10, 2014). To reach the 1.5 million households number, I added
the roughly 793,000 households with an income between $0 and $24,999 in Los Angeles
County to the roughly 795,000 households with an income between $25,000 and $49,999 in
Los Angeles County.
NAT’L HOUS. LAW PROJECT, supra note 19, § 2.2.1.1.
Exec. Office of Hous. & Econ. Dev., Massachusetts Rental Vouchers, MASS.GOV, http://www.mass.
gov/hed/housing/rental-assistance/mrv.html (last visited Mar. 23, 2014).
800
62 UCLA L. REV. 794 (2015)
and moderate-income residents in privately owned buildings.26 Finally, local
governments additionally have affordability programs. Perhaps the most
well-known examples are local rent control and rent regulation ordinances,
which limit how much landlords can increase rent.27 Rent regulation programs
exist in California, New York, New Jersey, and Washington, D.C.28 Although
stories of millionaires living in such apartments receive much media
attention, in reality it is low- and moderate-income individuals who rely
heavily on rent-regulated apartments: In New York City, half of all tenants
living in such housing make under $36,000 each year, and a quarter of all
tenants in rent-regulated housing have an income below the federal
poverty line.29
Thus, national, state, and local affordable housing programs are
important sources of assistance for low- and moderate-income families and
individuals living in cities. They make it possible for such residents to afford
their homes within the city. But the affordability programs do not last in
perpetuity,30 and the fact that affordable housing programs regulate rents
such that tenants are not paying the potential market-rate prices for their
homes makes these apartments prime targets for gentrification. Part II
addresses how gentrification targets these low- and moderate-income
residents.
26.
27.
28.
29.
30.
TENANTS & NEIGHBORS, A FEW FACTS ABOUT MITCHELL-LAMA RENTAL HOUSING,
available at http://tandn.org/pdf/Mitchell-Lama%20Rental%20Housing.pdf (last visited
Aug. 21, 2014).
See, e.g., Rent Stabilization Ordinance, L.A. HOUSING & COMMUNITY INVESTMENT DEPARTMENT, http://lahd.lacity.org/lahdinternet/RSO/tabid/263/language/en-US/Default.aspx (last
updated June 25, 2014).
See Dennis Keating & Mitch Kahn, Rent Control in the New Millennium, SHELTERFORCE,
May/June 2001, available at http://www.nhi.org/online/issues/117/KeatingKahn.html.
Patrick Markee, FACT VS. SPIN: Who REALLY Lives in Rent-Regulated Housing?, COALITION
FOR THE HOMELESS (May 27, 2010), http://www.coalitionforthehomeless.org/fact-vsspin-who-really-lives-in-rent-regulated-housing-2.
See, e.g., Amy Clark, Affordable Rental Housing: How It Works, NAT’L LOW INCOME
HOUSING COALITION (Mar. 27, 2013), http://nlihc.webfactional.com/article/affordablerental-housing-how-it-works (“[T]he existing stock of affordable rental housing is
disappearing due to deterioration and the exit of private owners from the affordable housing
market. According to the National Housing Trust, our nation loses two affordable
apartments each year for every one created.”).
Challenging Gentrification
II.
801
WHAT IS GENTRIFICATION?
There is much debate about how to define gentrification.31 Scholars
such as Rolf Goetze simply state that gentrification occurs when higherincome households move into neighborhoods that currently cater to lower-income
households.32 Other scholars define gentrification not only as the movement
of higher-income residents into lower-income neighborhoods but also the
displacement33 of lower-income residents from the neighborhood that occurs
as a result of this movement.34 They state that the term gentrification only
applies in circumstances where there is displacement whereas the term
revitalization applies to situations where reinvestment (including the arrival
of higher-income residents) occurs in a neighborhood without significant
displacement of current residents.35 For clarity, I use gentrification as these
latter scholars do—to refer to situations in which higher-income residents
move into a neighborhood currently housing lower-income residents and
ultimately displace them—because this Comment concerns itself with
fighting displacement caused by the arrival of higher-income tenants.36
Thus, when I use the term gentrification throughout this Comment, I mean a
process that leads to displacement of lower-income households in the
neighborhood in question.
Gentrification causes displacement through a few different mechanisms.37 As higher-income residents move to a neighborhood, rehabilitate
31.
32.
33.
34.
35.
36.
37.
MAUREEN KENNEDY & PAUL LEONARD, DEALING WITH NEIGHBORHOOD CHANGE:
A PRIMER ON GENTRIFICATION AND POLICY CHOICES 5 (2001).
See, e.g., ROLF GOETZE, UNDERSTANDING NEIGHBORHOOD CHANGE: THE ROLE OF
EXPECTATIONS IN URBAN REVITALIZATION 24 (1979).
Scholars such as Rolf Goetze are skeptical of including displacement in the definition of
gentrification because displacement itself is not a well-defined concept. See, e.g., id. at 25
(arguing that displacement could be alternatively defined as when families are forced to move
because of sharply increased tax bills or hiked rents, when households of two replace
households of four, or when households with better income prospects replace poor households). In
this Comment, I use displacement to mean that lower-income households feel pressured to
move by the increase of higher-income households in a neighborhood. Reasons for such
pressure could include increased rent or tax bills, lack of neighborhood businesses targeted to
the lower-income household’s income bracket, or targeted evictions and arrests of lowerincome residents.
See, e.g., KENNEDY & LEONARD, supra note 31, at 5; NEIL SMITH, THE NEW URBAN
FRONTIER: GENTRIFICATION AND THE REVANCHIST CITY 33 (1996) (noting that the
word “gentrification” was termed by sociologist Ruth Glass in 1964 as part of her critical
analysis of displacement occurring in London).
See, e.g., KENNEDY & LEONARD, supra note 31, at 6.
See infra Parts III–IV.
See, e.g., Peter Marcuse et al., Off-Site Displacement: How the Changing Economic Tide of a
Neighborhood Can Drown Out the Poor, 22 CLEARINGHOUSE REV. 1352, 1353 (1989)
802
62 UCLA L. REV. 794 (2015)
housing, and increase the values of their own and surrounding houses, higher
property taxes are levied against existing residents who may be unable to
afford such an increase and thus must move.38 Analogously, as landlords see
the opportunity to charge increased rents in a neighborhood, existing tenants
who cannot afford an increase in rent may be forced to move and the higherincome tenants who can afford such an increase replace them.39 In the
alternative, when landlords see the opportunity to charge increased rents they
may stop maintaining and repairing the units of current tenants so that the
tenants are forced to move by the poor condition of their housing.40 Then
landlords rehabilitate the units and rent them for much more to higherincome tenants.41 Displacement, whatever its specific impetus, can have a
significant effect on a neighborhood. For example, a 1981 study of Seattle
found that gentrification displaced 25 percent of tenants in certain
neighborhoods over a five-year period.42
Even when using a common definition of gentrification that incorporates
displacement, scholars have varying theories about why gentrification takes
place in some neighborhoods but not in others. Goetze focuses on an
individual choice-based theory of gentrification in which risk-oblivious socalled pioneers43 find an affordable neighborhood and take advantage of
mortgage opportunities and cheap housing in order to move to it.44 These
38.
39.
40.
41.
42.
43.
44.
(“[D]isplacement occurs when changes produced by a particular development affect the
neighborhood surrounding it, whether by increasing prices so that housing becomes
unaffordable, by changing the social composition of an area to make it unattractive to former
residents, or by creating blight in the physical environment that makes continued occupancy
hazardous.”).
GOETZE, supra note 32, at 103.
See John A. Powell & Marguerite L. Spencer, Giving Them the Old “One-Two”: Gentrification
and the K.O. of Impoverished Urban Dwellers of Color, 46 HOW. L.J. 433, 455 (2003).
See Marcuse et al., supra note 37, at 1357.
See SMITH, supra note 34, at 65.
See DAVID LEY, THE NEW MIDDLE CLASS AND THE REMAKING OF THE CENTRAL
CITY 66 (1996).
For a fascinating and critical discussion of the use of “pioneer” and other frontier vocabulary
in gentrification scholarship, see SMITH, supra note 34, at 17 (“Insofar as gentrification infects
working-class communities, displaces poor households, and converts whole neighborhoods into
bourgeois enclaves, the frontier ideology rationalizes social differentiation and exclusion as
natural, inevitable.”).
GOETZE, supra note 32, at 100–01. It is clear that Goetze believes gentrification is mainly
due to individuals’ initiative because he writes that policymakers must guide and diffuse
gentrification, implying that policymakers are not involved in the initial occurrence of gentrification
in a neighborhood. See id. at 7. For a more recent and nuanced analysis of individual choicebased theory as part of the explanation for gentrification, see Jackelyn Hwang & Robert J.
Sampson, Divergent Pathways of Gentrification: Racial Inequality and the Social Order of
Renewal in Chicago Neighborhoods, 79 AM. SOCIOLOGICAL REV. 726 (2014), which
Challenging Gentrification
803
pioneers, through word of mouth and local media stories, cause a rippling
effect in which risk- and gain-conscious higher-income households then
move to the neighborhood with mainstream residents following later.45
Other scholars, while acknowledging the role that the choices of individual
higher-income households play in gentrifying a neighborhood, situate their
analyses in the institutional actions that make gentrification possible.46
Private financial institutions play a role in encouraging gentrification of a
neighborhood by reversing redlining policies so that capital becomes available
to reinvest in the lower-income neighborhood47 and by providing mortgage
assistance in such a neighborhood for only households with an income higher
than the median.48 Public government institutions also play an enormous role
in encouraging gentrification. Local governments grant private financial
institutions tax write-offs for building in certain neighborhoods in order to
incentivize the injection of capital into these neighborhoods49 and then
support infrastructure development and beautification in the neighborhoods.50 The government may then target drug crackdowns,51 arrests of the
homeless52 and of youth of color,53 and selective code enforcement against
rundown housing54 in these neighborhoods to rid them of perceived
undesirable elements, making the neighborhoods more attractive to the
higher-income residents moving in. These private and public institutions often
select certain neighborhoods for these gentrification-prone policies when an
adjacent neighborhood is higher-income or has gentrified,55 triggering a
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
discusses individuals’ implicit racial biases in shaping the decision of whether to move into a
gentrifying neighborhood.
GOETZE, supra note 32, at 100–02.
See, e.g., SMITH, supra note 34, at 57 (“To explain gentrification according to the gentrifier’s
preferences alone, while ignoring the role of builders, developers, landlords, mortgage
lenders, government agencies, real estate agents—gentrifiers as producers—is excessively
narrow. A broader theory of gentrification must take the role of the producers as well as the
consumers into account . . . .”).
Id. at 68 (“[W]ith private-market gentrification, one or more financial institutions will reverse a
long-standing redlining policy and actively target a neighborhood as a potential market for
construction loans and mortgages.”).
Isis Fernandez, Note, Let’s Stop Cheering, and Let’s Get Practical: Reaching a Balanced
Gentrification Agenda, 12 GEO. J. ON POVERTY L. & POL’Y 409, 423 (2005).
SMITH, supra note 34, at 128.
John J. Betancur, The Politics of Gentrification: The Case of West Town in Chicago, 37 URB.
AFF. REV. 780, 787–88 (2002).
SMITH, supra note 34, at 24.
Id. at 218–27.
Betancur, supra note 50, at 804.
Id.
SMITH, supra note 34, at 209; Betancur, supra note 50, at 786–87.
804
62 UCLA L. REV. 794 (2015)
realization that far more rent could be extracted from these neighborhoods
with the conversion of neighborhood building stock to higher quality and
better use.56 This so-called rent gap57 between current and potential rents
exists in neighborhoods within cities that have tight housing markets, that
have other more expensive neighborhoods, and that are close to a growing
job center.58
It is challenging to determine the prevalence of gentrification, such as
the number of neighborhoods and cities in which it occurs and the number of
people who are being displaced. It simply is quite difficult to find compiled and
adequate data on the subject.59 Nonetheless, data from the 2010 census supports
the inference that gentrification is affecting many cities. One census report
notes that in metropolitan areas with a population over five million, there was
a population increase of 13.3 percent within two miles of the largest city’s city
hall; and in metropolitan areas with a population of between two-and-a-half
and five million, there was a population increase of 6.5 percent within two
miles of the largest city’s city hall.60 Since areas closest to city hall are usually
more expensive than outlying areas of a city, these neighborhoods attract
higher-income residents.61 At the same time, income inequality within large
cities continues to be significant.62 This data suggests that higher-income
56.
57.
58.
59.
60.
61.
62.
SMITH, supra note 34, at 193. “Better use” is clearly subjective. Reasonable minds could
differ regarding whether it is better to tear down a tenement building and replace it with
condominiums (which would displace the current residents and change the socioeconomic
makeup of the neighborhood) or make no changes to the building.
Neil Smith uses this term to label the difference between current and potential rents in a
neighborhood. See id.
See KENNEDY & LEONARD, supra note 31, at 8, 10–11.
Id. at 7–8.
STEVEN G. WILSON ET AL., U.S. CENSUS BUREAU, PATTERNS OF METROPOLITAN
AND MICROPOLITAN POPULATION CHANGE: 2000 TO 2010, at 27 (2012).
For example, the zip code 10012 (Soho, New York City) is the sixth most expensive in the country.
Morgan Brennan, America’s Most Expensive Zip Codes, FORBES (Oct. 12, 2011, 11:54 AM),
http://www.forbes.com/sites/morganbrennan/2011/10/12/americas-most-expensive-zip-codes.
Google Maps calculates the distance from that zip code to New York City Hall as just 1.5
miles. Driving Directions from New York City Call to Zip Code 10012, GOOGLE MAPS,
http://maps.google.com (follow “Directions” hyperlink; then input “New York City Hall” in
“Starting Point” and input “10012” in “Destination”). The zip code 90402 is the most
expensive zip code in the city of Santa Monica. America’s Most Expensive ZIP Codes,
FORBES, http://www.forbes.com/lists/2011/7/zip-codes-11_rank.html (last visited Oct. 16,
2014). Google Maps calculates the distance between that zip code and Santa Monica City
Hall as just 2.5 miles. Driving Directions from Santa Monica City Call to Zip Code 90402,
GOOGLE MAPS, http://maps.google.com (follow “Directions” hyperlink; then input “Santa
Monica City Hall” in “Starting Point” and input “90402” in “Destination”).
See ADAM BEE, U.S. CENSUS BUREAU, HOUSEHOLD INCOME INEQUALITY WITHIN U.S.
COUNTIES: 2006–2010, at 4 (2012), available at http://www.census.gov/prod/2012pubs/
acsbr10-18.pdf.
Challenging Gentrification
805
residents may be moving into the center of many large cities and displacing (at
least some) low- and moderate-income residents to outer-city neighborhoods,
thus heightening the income inequality within the city as a whole.
Gentrification, then, is not a theoretical or future problem but one that is
borne out from census findings.
III.
THE EFFECTS AND HARMS OF GENTRIFICATION
In a vacuum, gentrification does not appear to be a particularly
concerning phenomenon. In fact, many consider the movement of capital
and of higher-income residents into a neighborhood as an important
revitalizing source for neighborhoods that have long been under-resourced
ghettos63 for low-income households.64 As Neil Smith has written, “[w]ithout
private rehabilitation and redevelopment, the neighborhood’s housing stock
[would] remain severely dilapidated . . . .”65 Yet the displacement inherent in
this Comment’s understanding of gentrification should give us pause. Who is
being displaced? Where are they going?
As defined here, gentrification displaces lower-income residents.66 In
comparatively rich cities where few census tracts contain high proportions of
households living in poverty and where housing markets are tight,
gentrification may lead to the pricing out of low-income residents from the
central city or from the region as a whole.67 Middle-class workers also may be
unable to afford rent increases in gentrifying neighborhoods and so
gentrification may price them out of their homes.68 Gentrification of a
neighborhood slowly squeezes out all residents except the rich and “portends
a class conquest of the city . . . [by] scrub[bing] the city clean of its workingclass geography and history.”69 One clear harm of gentrification, then, is that
it begins to strip cities of their socioeconomic diversity and pushes low- and
63.
64.
65.
66.
67.
68.
69.
I recognize that the term ghetto is charged. In this Comment, I use it to underscore that the
inner-city neighborhoods being gentrified are generally monolithic in their class (lowincome) and racial makeup (black or Latino). For a general discussion of the term ghetto in
its current American context, see Elijah Anderson, The Iconic Ghetto, 642 ANNALS AM.
ACAD. POL. & SOC. SCI. 8 (2012).
See, e.g., KENNEDY & LEONARD, supra note 31, at 14; Powell & Spencer, supra note 39, at
446 (noting that poor cities, such as Cleveland and Detroit, need the influx of middle-class
gentrifiers to attain economic viability).
SMITH, supra note 34, at 163.
See supra note 34 and accompanying text.
Powell & Spencer, supra note 39, at 446.
See id. at 456 (noting that gentrification has priced out middle-class residents from Oakland
and Cambridge).
SMITH, supra note 34, at 26–27.
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moderate-income households farther from the jobs and transit found closest
to city centers.70 A readily available example of such a city is Cambridge,
Massachusetts. While internationally known as the home to Harvard University,
for many years Cambridge was an economically diverse city with a significant
number of blue-collar residents.71 But its gentrification over the past decade
is clear from data published on the Cambridge Community Development
Department’s website. In 2000, the median household income for the city
was $47,979 with the poorest census tract within the city having a median
household income of $23,750.72 By 2009, the median household income for
the city had jumped to $64,420 with the poorest census tract from 2000 now
having a median household income of $45,496—an income almost double
that of nine years earlier.73
Some retort that even if gentrification causes lower-income households
to be forced from a neighborhood, in the end the city overall benefits from the
increased property taxes that gentrifiers pay.74 But such a benefit is not borne
out by the data: Many gentrifiers are actually moving from within the city
(and so were already a part of the tax base) or are politically savvy enough to
ensure that the assessed value of their new property remains low;75 further,
cities sometimes reduce property taxes for long-time residents to buttress
against displacement, resulting in a wash regarding whether there is an
increase in a city’s revenues.76 Thus, gentrification does not create clear
financial benefits to the city, and it certainly harms those who are displaced.77
70.
71.
72.
73.
74.
75.
76.
77.
Powell & Spencer, supra note 39, at 441–42.
See id. at 456.
2000 Census Tract Income Characteristics, CAMBRIDGE COMMUNITY DEVELOPMENT
DEPARTMENT, http://www.cambridgema.gov/CDD/factsandmaps/populationdata/censustract/
2000ctincome.aspx (last visited Mar. 30, 2014). In 2000, a household income of $23,750 was 1.4
times the federal poverty line for a household of four or about two times the federal poverty line for a
household of two. See The 2000 HHS Poverty Guidelines, U.S. DEPARTMENT HEALTH &
HUMAN SERVICES (Jan. 29, 2010), http://aspe.hhs.gov/poverty/00poverty.htm.
2005–9 Census Tract Income Characteristics, CAMBRIDGE COMMUNITY DEVELOPMENT
DEPARTMENT, http://www.cambridgema.gov/CDD/factsandmaps/populationdata/censustract/
20059ctincome.aspx (last visited Mar. 30, 2014). A household income of $45,496 was 2.1 times
the federal poverty line for a household of four or 3.1 times the federal poverty line for a household
of two. See The 2009 HHS Poverty Guidelines, U.S. DEPARTMENT HEALTH & HUMAN
SERVICES (Feb. 3, 2011), http://aspe.hhs.gov/poverty/09poverty.shtml.
See, e.g., SMITH, supra note 34, at 137.
Id.
See Timothy Williams, Cities Mobilize to Help Those Threatened by Gentrification, N.Y.
TIMES, http://www.nytimes.com/2014/03/04/us/cities-helping-residents-resist-the-new-gentry.
html?_r=0 (Mar. 3, 2014).
For example, some studies have found that 86 percent of those displaced by gentrification
move into substandard housing. See Powell & Spencer, supra note 39, at 470. Additionally,
Challenging Gentrification
807
Nothing suggests that gentrification of a few neighborhoods within a city is
economically worth the displacement of an entire enclave of low- and middleclass residents.
Beyond the class-based component of gentrification, there is a decidedly
racial component as well. Usually in gentrifying neighborhoods, higherincome white residents displace lower-income residents of color.78 For
example, in a study of gentrification in Chicago, one scholar found that
between 1980 and 1990 the ratio of black to white residents fell from 6:1 to
3:1.79 More recently, census data has shown that “[a] common theme for the
non-Hispanic White alone population from 2000 to 2010 was growth—both
in number and in share of total population—in the central areas of many of
the largest principal cities . . . .”80 For instance, as downtown Washington,
D.C. has gentrified over the past ten years,81 the white population has increased
by more than 10 percent in most of the census tracts making up the area.82 As a
result, the people of color displaced by gentrification are forced to the outer
perimeters of the city and may ultimately be forced into lesser-resourced suburban
rings.83 As gentrification continues over time, the central neighborhoods of cities
become monochromatically white while outer neighborhoods and suburban
rings become diversified or majority-minority. Thus, gentrification causes
cities to become not only socioeconomically but also racially monolithic.
78.
79.
80.
81.
82.
83.
cities generally offer more upwardly mobile economic opportunities for the poor than rural
areas do. See EDWARD GLAESER, TRIUMPH OF THE CITY 79–81 (2011).
KENNEDY & LEONARD, supra note 31, at 5; Powell & Spencer, supra note 39, at 436–37.
But see SMITH, supra note 34, at 143–61 (noting that white gentrifiers are at least initially
“less squeamish” about moving into majority-white neighborhoods and that gentrifiers in
majority-black Harlem were at first middle-class black households); Hwang & Sampson,
supra note 44.
See SEAN ZIELENBACH, THE ART OF REVITALIZATION: IMPROVING CONDITIONS IN
DISTRESSED INNER-CITY NEIGHBORHOODS 115 (2000).
WILSON ET AL., supra note 60, at 54.
The upward climb of the household median income in Washington, D.C. over the past ten years
can be found on www.city-data.com. Washington, District of Columbia (DC) Income Map, Earnings
Map, and Wages Data, CITY-DATA.COM, http://www.city-data.com/income/incomeWashington-District-of-Columbia.html#mapOSM?mapOSM[zl]=14&mapOSM[c1]=38.9080
6620644182&mapOSM[c2]=-77.04977989196777&mapOSM[s]=4 (last visited Mar. 30, 2014).
For an example of the increase of median household incomes in gentrifying areas, click on the
census tracts around U Street Northwest, a popular area with young professionals.
WILSON ET AL., supra note 60, at 65.
See SMITH, supra note 34, at 161–63 (noting that continued gentrification of Harlem might force
the low-income African American community into the suburbs); see also Matthew Bloch et al.,
Mapping the 2010 U.S. Census, N.Y. TIMES, http://projects.nytimes.com/census/2010/map
(last visited Mar. 30, 2014) (showing that the black population has decreased in Washington,
D.C. proper and has increased in areas east of the city, such as Kettering and Greater Upper
Marlboro in Maryland).
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62 UCLA L. REV. 794 (2015)
In summary, various analyses of gentrifying neighborhoods and cities
show that gentrification leads to the displacement of lower-income households
and nonwhite households. As two public policy commentators have written,
“[g]entrification is not only attracting higher income households who replace
lower income households in the neighborhood; it is attracting a sufficiently
large number such that the unique social fabric of the neighborhood is
changed.”84 In effect, gentrification causes the community character85 to change.
The process of gentrification poses a major challenge to the continuing
diversity within American cities and to the protection and preservation of
longstanding communities within them.
Even if one is not concerned about socioeconomic and racial diversity of
cities per se, gentrification—or at least the displacement it causes—has been
shown to harm low-income residents on an individual basis. Harvard
sociologist Robert J. Sampson has extensively analyzed the federal program
Moving to Opportunity (MTO) under which some low-income affordable
housing residents were randomly selected to receive vouchers so they could
move to less-impoverished neighborhoods if they so desired.86 His and
others’ work shows that even though residents were voluntarily moving to
less-impoverished neighborhoods within the same city, such moves were
“associated with declines in academic performance and educational
attainment as well as with increased levels of drug use, sexual activity, and
other risky behaviors” for adolescents.87 Such risks increased because parents
were moving into neighborhoods that were often still violent, segregated, and
underresourced,88 but because the families were now living in new
neighborhoods, parents lacked familiarity with how to navigate the school
system and children were less equipped to navigate new environments and to
avoid trouble.89 If Sampson’s findings of negative social outcomes—such as
84.
85.
86.
87.
88.
89.
KENNEDY & LEONARD, supra note 31, at 5–6.
This was the term used by the court in Chinese Staff & Workers Ass’n v. City of New York, a
case whose context involved the gentrification of Chinatown in New York City. See Chinese
Staff & Workers Ass’n v. City of New York, 68 N.Y.2d 359, 366 (1986).
See Robert J. Sampson, Moving to Inequality: Neighborhood Effects and Experiments Meet Social
Structure, 114 AM. J. SOC. 189, 202 (2008).
Patrick Sharkey & Robert J. Sampson, Destination Effects: Residential Mobility and Trajectories
of Adolescent Violence in a Stratified Metropolis, 48 CRIMINOLOGY 639, 644 (2010).
See, e.g., Sampson, supra note 86, at 217 (noting that whites and Latinos flee neighborhoods
into which black families are moving, thus resulting in segregated neighborhoods); Sharkey
& Sampson, supra note 87, at 640, 645 (noting that when public housing residents moved to
higher-income neighborhoods, their children were still entangled in violence and their
children’s school environments did not improve).
Sharkey & Sampson, supra note 87, at 645.
Challenging Gentrification
809
declining academic performance and greater likelihood of drug use and sexual
activity—are present when a family proactively moves to a less-impoverished
neighborhood with federal assistance, a fortiori such negative effects will exist
when rising rents displace unwilling families who may not have any
government support to assist in their move.
Although Sampson’s research has shown that when low-income families
move out of a city altogether they do not experience the same sorts of negative
effects as when they move to another city neighborhood,90 moving out of the
city introduces a whole new host of problems for these families. Low-income
African Americans who move out of high-poverty urban areas into small,
majority-white towns “may experience health-demoting stressors as a result
of their immersion in predominantly white communities.”91 Moreover, work
by other organizations suggests that there are negative health outcomes for
those displaced by gentrification, whether they have been pushed out to the
suburbs or just to the edges of cities.92 Additionally, whenever low-income
individuals are pushed farther from the city’s center, they are then farther
from the inner-city jobs that most often employ them93 and contribute to
negative environmental effects such as pollution as a result of their longer
commutes to and from work.94 Finally, “[c]ities don’t just connect capital-less
workers with capital-rich employers; they offer a huge variety of job
opportunities that allow poor people (indeed, everybody) to find talents they
90.
91.
92.
93.
94.
See id. at 661.
Danya E. Keene & Mark B. Padilla, Race, Class and the Stigma of Place: Moving to
“Opportunity” in Eastern Iowa, 16 HEALTH & PLACE 1216, 1217 (2010).
The Other Side of Gentrification: Health Effects of Displacement, INT’L MAKING CITIES
LIVABLE LLC, http://www.livablecities.org/blog/other-side-gentrification-health-effectsdisplacement (last visited Mar. 30, 2014) (“The Centers for Disease Control and Prevention
(CDC) highlight [that] . . . [w]hen neighborhoods change rapidly, pushing existing residents
to the margins, disparities in health often widen. This becomes evident in health outcomes
such as cancer rates, incidence of asthma, diabetes, and cardiovascular disease, as these
marginalized residents are often priced out of neighborhoods with healthy housing, healthy
food[,] and healthy urban environments. In their new neighborhoods on the margins they
are more likely to experience food deserts, less walkable streets, further distances to drive, and
industrial pollutants near housing.”).
See GLAESER, supra note 77, at 87. This proximity to jobs—both high- and low-paying—is
one of the reasons that certain neighborhoods tend to gentrify. Id. at 180 (“In many cities,
like New York, once-poor neighborhoods, like Tribeca, that can offer fast commutes on foot
to core business districts have come back, spurred by the same increasing value of time that
pushed Americans out of public transit into cars.”).
See Ben Adler, Pushing Poor People to the Suburbs Is Bad for the Environment, GRIST (Dec. 13,
2013, 4:56 PM), http://grist.org/cities/pushing-poor-people-to-the-suburbs-is-bad-for-theenvironment (discussing that some low-income families displaced from New York City have
moved to the Poconos, a rural area in Pennsylvania, and commute to their jobs in New York,
which “is not environmentally efficient”).
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might otherwise never know they had.”95 Displacement from core city
neighborhoods not only has negative health effects on low-income individuals
and on our environment but also has negative financial effects as well.96
All the data shows that gentrification is harmful on a number of levels.
For those who value socioeconomic diversity within cities and neighborhoods,
gentrification creates disvalue by diminishing such diversity. For those who
value racial diversity within cities and neighborhoods, so too gentrification
diminishes such diversity. For those who care about the environment,
gentrification’s displacement results in pollution and possibly other harmful
environmental results. Finally, the sort of displacement that gentrification
causes negatively affects the well-being—financially, mentally, academically,
health-wise, and more—of the low-income individuals displaced. Therefore,
it is clear that even if gentrification has certain positive effects, its harmful
ones are potent and significant.
IV.
THE TOOLS TO HALT GENTRIFICATION
Even if the effects of gentrification on a neighborhood or an entire city
are harmful, gentrification is such a multilayered process that it can be
difficult to determine how best to challenge or arrest it. As discussed in Part
II, the displacement caused by gentrification can occur because of landlords’
raising of rents, financial institutions’ mortgage policies, or individuals’
rehabilitation of new homes. Individuals, private institutions, and government
actors may all encourage gentrification in varying ways. Thus, it can seem
impossible to determine how to halt the gentrification process and ensure that
a neighborhood remains relatively socioeconomically and racially diverse.
While community organizing97 and policymaking98 play instrumental
roles in fighting gentrification, this Comment considers lawyers’ part in
95.
96.
97.
98.
GLAESER, supra note 77, at 79.
See id.
For example, the Coalition for Economic Survival in Los Angeles, National Alliance of HUD
Tenants, and New York State Tenants & Neighbors all organize to preserve affordable housing and
fight gentrification. See COALITION FOR ECONOMIC SURVIVAL, http://www.cesinaction.org
(last visited June 15, 2013); NATIONAL ALLIANCE OF HUD TENANTS, http://www.saveour
homes.org (last visited Mar. 30, 2014); TENANTS & NEIGHBORS, http://www.tandn.org (last
visited Mar. 30, 2014).
For example, the National Housing Law Project and National Low Income Housing Coalition
work on policy issues surrounding the preservation of low-income housing and neighborhoods.
See NATIONAL HOUSING LAW PROJECT, http://www.nhlp.org (last visited Mar. 30, 2014);
NATIONAL LOW INCOME HOUSING COALITION, http://www.nlihc.org (last visited Mar.
30, 2014).
Challenging Gentrification
811
preserving the diversity of American cities. I use as my inspiration a brief
1989 article by Peter Marcuse, Raun Rasmussen, and Russell Engler that
proposed three legal tools for fighting gentrification: affordability-friendly
zoning laws, environmental impact reviews, and the FHA.99 In the following
subsections, I expand on their hypotheses in light of the continuing gentrification
of the past quarter of a century.
A.
A Preemptive Strike: Litigating Zoning Regulations
to Ensure Affordability
Advocates for socioeconomic and racial integration have long used
litigation based on zoning regulations as one tool for achieving their goals.
Usually, however, advocates have used zoning litigation to create affordable
housing in lily-white affluent suburbs rather than using it to create or preserve
affordable housing in the inner city.100 Nonetheless, it seems possible to use
the exact sort of zoning litigation often used to integrate suburbs to instead
keep gentrifying city neighborhoods integrated.101 Specifically, attorneys
could use litigation to enforce inclusionary zoning legislation requiring a
certain number or percentage of affordable units in new developments or to
force states to recognize affordable housing, or zoning friendly to it, as a
constitutional right. Both types of litigation have been applied to create affordable housing in the suburbs but could now be used to create or preserve affordable
housing in city neighborhoods. Because this litigation would be based on
enforcing existing zoning regulations or finding a new right in state
constitutions, such litigation could be brought preemptively before there were
any definitive signs of gentrification, or early in the gentrification process, as
soon as rehabilitated buildings’ rents began to rise or there were plans for new
higher-end developments.
Concerning the first type of litigation, attorneys in states with
inclusionary zoning laws could bring suits in gentrifying neighborhoods to
enforce those regulations in the city. A number of states have inclusionary
zoning legislation that, at least initially, was directed at the socioeconomic
99. See Marcuse et al., supra note 37, at 1364–70.
100. See generally Bernard K. Ham, Comment, Exclusionary Zoning and Racial Segregation: A
Reconsideration of the Mount Laurel Doctrine, 7 SETON HALL CONST. L.J. 577, 577–90 (1997).
101. See Peter W. Salsich, Jr., Displacement and Urban Reinvestment: A Mount Laurel Perspective,
53 U. CIN. L. REV. 333, 368 (1984) (“Reinvestment displacement raises the same question as
exclusionary zoning although the view is from a different angle.”).
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62 UCLA L. REV. 794 (2015)
and racial segregation of well-to-do white suburbs.102 For example, the
Massachusetts Low and Moderate Income Housing Act (sometimes called
the Anti-Snob Zoning Act) requires that 10 percent of “the housing stock
within every city and town be subsidized with or by a federal or state
subsidy.”103 When an economically or racially homogenous town or city has
denied permits for the creation of affordable housing, attorneys have argued
and established that the denial violates the Act since the 10 percent threshold
has not yet been met.104 One example of this sort of case is Town of
Middleborough v. Housing Appeals Committee,105 in which a town more than
twenty miles from any major city in the state106 denied a permit to a developer
trying to create affordable housing in a rural residential district of the town.107
By relying on the Act, the developer was able to appeal and ultimately gain a
permit to build affordable housing in the town.108 Overall, it was a very
straightforward case—the town tried to wiggle out of having more affordable
housing, but the Massachusetts Low and Moderate Income Housing Act
ultimately required it to give a permit to the affordable housing developer.
Applying the Act (or a similar inclusionary zoning statute in another
state) to create or preserve affordable housing in a gentrifying city neighborhood
might not result in such clear-cut litigation, but in certain situations it might
succeed. Examples are intuitive: If a neighborhood in Boston, Massachusetts
has never had much affordable housing and looks like it is on the cusp of
gentrification, an attorney could bring a claim under the Massachusetts Low
and Moderate Income Housing Act to require that a developer be allowed to
create more affordable housing there before pricey condominiums overrun the
neighborhood. Or if during the early stages of gentrification the loss of a
102. See Lisa C. Young, Breaking the Color Line: Zoning and Opportunity in America’s Metropolitan
103.
104.
105.
106.
107.
108.
Areas, 8 J. GENDER RACE & JUST. 667, 699 (2005) (“The Massachusetts Low and Moderate
Income Housing Act, enacted in 1969, was an attempt to ‘open up the suburbs’ to low and
moderate-income families.”). Other states with inclusionary zoning programs are California,
Colorado, Connecticut, Hawaii, New Jersey, Rhode Island, and Virginia. Gerald S.
Dickinson, Inclusionary Eminent Domain, 45 LOY. U. CHI. L.J. 845, 872 n.122 (2014);
Young, supra, at 691, 694. For a critique of the state-mandated integration of the suburbs,
see Jonathan Douglas Witten, The Cost of Developing Affordable Housing: At What Price?, 30
B.C. ENVTL. AFF. L. REV. 509, 526 n.78 (2003).
Witten, supra note 102, at 527.
See, e.g., Zoning Bd. of Appeals v. Sugarbush Meadow, LLC, 981 N.E.2d 690 (Mass. 2013); Bd. of
Appeals v. Hous. Appeals Comm. in Dep’t of Cmty. Affairs et al., 204 N.E.2d 393 (Mass. 1973).
845 N.E.2d 1143 (Mass. App. Ct. 2006).
See About Middleborough, TOWN MIDDLEBOROUGH MASS., http://www.middleborough.com/
about.html (last visited Mar. 30, 2014).
Housing Appeals Committee, 845 N.E.2d at 1145–46.
Id. at 1151–53.
Challenging Gentrification
813
particular affordable complex would cause a neighborhood to dip below the
required percentage of affordable housing, an attorney could bring a claim
arguing that the Act mandated the preservation of that complex.
The biggest obstacle to this sort of litigation might be that some states
include a self-limiting exemption in their inclusionary zoning statutes for
municipalities that already have reached a certain threshold of affordable
housing (for example, 10 percent of the housing in the municipality already is
deemed affordable).109 Thus, if a city as a whole had a certain number or
percentage of affordable housing units, it would not necessarily violate the
inclusionary zoning statute to not build affordable housing in, or to remove
affordable housing, from a gentrifying neighborhood. In such a situation,
litigation using the requirements of the inclusionary zoning statute to argue
for the creation of more of, or the continued preservation of, such affordable
housing would likely fail. And even if there was no self-limiting principle
included in the statute, it is sometimes a larger logical leap to apply
inclusionary zoning requirements to affordable housing in gentrifying city
neighborhoods than in segregated suburbs. Attorneys could still easily bring
litigation in neighborhoods that never had the requisite affordable housing,
but it would be more difficult to bring inclusionary zoning litigation to
preserve affordable housing. Rather than simply showing that there is little or
no affordable housing (which would automatically violate the statute), an
attorney would have to show that the closure of affordable housing in a
certain neighborhood would bring the level of affordable housing under the
legally mandated minimum for the entire city. This certainly isn’t an
impossible showing, but there is an extra step of analyzing the effects of the
closure of affordable housing in the neighborhood and making a strong
showing that the closure of a specific building or program will result in fewer
overall affordable units. While this sounds simple, a savvy defendant could
argue that the specific closure being litigated would affect the housing market
of the neighborhood in a way in which affordable housing would be built
elsewhere in the area, and so there would be no violation of the zoning
statute.110 Thus, inclusionary zoning litigation appears on its face applicable
109. See Young, supra note 102, at 691.
110. While not completely on point, an analogous argument was made in Hallmark Developers,
Inc. v. Fulton County, 466 F.3d 1276 (11th Cir. 2006). In that case, the court held that it was
“inherently speculative” to find a violation of the Fair Housing Act (FHA) because the
plaintiffs could not definitively prove what would happen after the closing of the affordable
housing project. Id. at 1287. In an inclusionary zoning litigation case, a defendant might
convincingly use the logic that since the plaintiff could not definitively prove whether more
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62 UCLA L. REV. 794 (2015)
to attempts to create and preserve affordable housing in gentrifying
neighborhoods, but litigation regarding preservation might ultimately depend
on whether the plaintiffs can definitively show the effects of the loss of the
building or program on the housing market in the neighborhood.
Concerning the second type of litigation based on a constitutional right
to affordable housing, attorneys could try to follow New Jersey’s lead in its
Mount Laurel cases111 and argue that state constitutions require municipalities
to provide housing for all their citizens, including low-income citizens.112 In
the first Mount Laurel case, the New Jersey Supreme Court held that its state
constitution required state police power—including the oversight of zoning
regulations—to promote the general welfare.113 It then held that the town of
Mount Laurel’s zoning ordinance, which only permitted single-family houses,
did not promote the general welfare because it summarily excluded affordable
multifamily housing for low-and moderate-income individuals, and the court
thus found the zoning ordinance unconstitutional.114 In the follow-up case to
the initial litigation, the New Jersey Supreme Court clarified that
municipalities had the affirmative duty to take measures that would, in
practice rather than in theory, create greater affordable housing.115 The court
111.
112.
113.
114.
115.
affordable housing would be built after the closing of a building or program, the plaintiffs
could not ex ante assume there would be a violation of the zoning regulations.
S. Burlington Cnty. NAACP v. Twp. of Mount Laurel, 336 A.2d 713 (N.J. 1975)
[hereinafter Mount Laurel I]; S. Burlington Cnty. NAACP v. Twp. of Mount Laurel, 456
A.2d 390 (N.J. 1983) [hereinafter Mount Laurel II].
Some scholars have argued that a right to affordable housing might also be found in the U.S.
Constitution. See, e.g., Shelby D. Green, Imagining a Right to Housing, Lying in the Interstices,
19 GEO. J. ON POVERTY L. & POL’Y 393 (2012). This is a difficult case to make,
considering that the Supreme Court has strongly implied that there is no constitutional right
to housing:
We do not denigrate the importance of decent, safe, and sanitary housing. But
the Constitution does not provide judicial remedies for every social and
economic ill. We are unable to perceive in that document any constitutional
guarantee of access to dwellings of a particular quality . . . . Absent
constitutional mandate, the assurance of adequate housing and the definition
of landlord-tenant relationships are legislative, not judicial, functions.
Lindsey v. Normet, 405 U.S. 56, 74 (1972). Nonetheless, there might be some creative
arguments to be made in federal court around a right to housing. For example, Shelby Green
has argued that there might be an Equal Protection Clause violation if a city gives tax breaks
or subsidies to developers as part of a revitalization scheme but does not offer similar help to
tenants. See Green, supra, at 428.
Mount Laurel I, 336 A.2d at 725.
Id. at 729–32.
Mount Laurel II, 456 A.2d at 442.
Challenging Gentrification
815
required the state to incentivize or require the use of housing subsidies and
the use of inclusionary zoning.116
No other state has made as strong of a statement as New Jersey in the
Mount Laurel cases by finding an affirmative constitutional requirement for
affordable housing.117 Nonetheless, some states, including Pennsylvania and
New York, have found that their constitutions do require that zoning
regulations not exclude low-income residents.118 Indeed, it is not difficult to
make the argument that most state constitutions might, if questioned, require
some sort of protection for affordable housing through local zoning
regulations.119 The section of the state constitution that the New Jersey
Supreme Court in the Mount Laurel cases found required affordable housing
simply reads: “All persons are by nature free and independent, and have
certain natural and unalienable rights, among which are those of enjoying and
defending life and liberty, of acquiring, possessing, and protecting property,
and of pursuing and obtaining safety and happiness.”120 In New Jersey and
Pennsylvania, the finding of a constitutional right to the availability of
affordable housing was based on arguments that zoning regulations are an
instantiation of police power and that a state’s police power must promote the
general welfare of its citizens. By using arguments based on a relatively
straightforward understanding of police power or on almost innocuous state constitutional language, advocates fighting gentrification might win a state right
to affordability-friendly zoning laws without needing the ex ante existence of
pro-affordability statutes. Such arguments would surely be applicable to the
availability of affordable housing in gentrifying neighborhoods where the
116. Id. at 443.
117. See, e.g., Asian Ams. for Equal. v. Koch, 514 N.Y.S.2d 939, 950 (App. Div. 1987) (“[The
lower court] concedes in its opinion that Mount Laurel is not the law in New York. We go
further. Not by the widest stretch of the imagination, could the fact pattern in Mount Laurel
be applicable to New York City’s record for providing for low and moderate income housing.
. . . We carefully note that the Mount Laurel holdings are solely based upon an interpretation
of the provisions of the law and Constitution of the State of New Jersey.”).
118. See, e.g., Suffolk Hous. Servs. v. Town of Brookhaven, 511 N.E.2d 67, 69 (N.Y. 1987)
(finding that exclusionary zoning regulations are not a legitimate use of a state’s police
power); Twp. of Willistown v. Chesterdale Farms, Inc., 341 A.2d 466, 468 (Pa. 1975)
(finding that zoning only 80 acres out of a total of 11,589 for possible affordable housing was
exclusionary and so violated the Pennsylvania constitution).
119. But some states have come to the opposite conclusion. See Precision Equities, Inc. v.
Franklin Park Borough Zoning Hearing Board, 646 A.2d 756, 760 n.4 (Pa. Commw. Ct.
1994) (declining to follow the expansive Mount Laurel mandate for affordable housing in
Pennsylvania); San Telmo Assoc. v. City of Seattle, 735 P.2d 673 (Wash. 1987) (finding an
inclusionary zoning ordinance in Seattle could violate the Washington Constitution’s takings clause).
120. N.J. CONST. art. I, § 1.
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state was supporting the gentrification through various policies such as
zoning regulations or, perhaps more relevantly, tax breaks to developers.121 If
progentrification policies were causing a reduction in or elimination of
affordable housing, the reduction or elimination would have a negative effect
on the welfare of a state’s residents, and the state could be found to be in
violation of its constitution for using its police power in a way that fails to
protect the welfare of its citizens.122
Litigating for the protection of affordable housing under a state constitution
or for the enforcement of inclusionary zoning laws are both employable
strategies when there is a threat to affordable housing in gentrifying
neighborhoods. In fact, bringing these sorts of suits might be particularly
successful in the gentrification context as compared to the suburban
integration context. Although courts may have been reluctant to open up
middle- and upper-class suburbs to low-income families on the theory that
local municipalities should be able to zone or regulate affordable housing
however they believe is appropriate, there might be greater willingness to
protect low-income families who are pushed out of neighborhoods in the city
they once could afford. The narrowing of neighborhoods available to lowincome individuals might be more worrisome to courts than the exclusion of
low-income individuals from neighborhoods they had never been a part of
anyway, which might lead the courts to begin interpreting state constitutions
and zoning regulations in a more protective manner.
Even though such zoning-related litigation may be a helpful tool in the
fight to challenge gentrification, it is likely the most limited of the three
strategies discussed in this Comment. Litigation surrounding the enforcement of
inclusionary zoning laws will only be able to succeed in the several states that
have such laws—and even in those states, housing advocates are wary of the
power of inclusionary zoning to keep neighborhoods socioeconomically
diverse.123 Additionally, zealous litigation for the enforcement of inclusionary
zoning might result in backlash litigation questioning whether such zoning
violates the Takings Clause, Due Process Clause, or Equal Protection Clause
of the U.S. Constitution.124 Litigation surrounding whether state constitutions
121. See supra notes 46–56 and accompanying text.
122. Cf. Salsich, supra note 101, at 367 (noting that if a government helps to fund progentrification
projects without also addressing the effect of resident displacement, the welfare of these
residents will not be protected, resulting in a “questionable” exercise of police power).
123. See, e.g., Samuel Stein, De Blasio’s Doomed Housing Plan, JACOBIN MAG., Fall 2014, available at
https://www.jacobinmag.com/2014/10/de-blasios-doomed-housing-plan/.
124. There are persuasive arguments that inclusionary zoning regulations do not violate any aspects of
the U.S. Constitution. See, e.g., Laura M. Padilla, Reflections on Inclusionary Housing and a
Challenging Gentrification
817
mandate that zoning regulations protect affordable housing must be brought
on a state-by-state basis under state law, and so it would be difficult for
successes in one jurisdiction to be applied when a similar case is brought
elsewhere. Additionally, no state has found a constitutional right to
affordable housing or to affordable housing-friendly zoning practices in
decades.125 While this may not be determinative of whether to apply such a
strategy (perhaps attorneys simply are not bringing these cases, or courts
would be more amenable to friendly rulings with the facts from a
gentrification case), it does not engender much confidence in such potential
litigation. Thus, zoning-related litigation strategies are vulnerable to a
number of critiques. To buttress against this vulnerability, I turn to other
possible litigation strategies for challenging gentrification.
B.
Fighting Luxury Development: The Use of Environmental
Impact Statements
Although zoning law has a long history of being used to fight for diverse
neighborhoods, advocates have used national or state EIS requirements less
often when challenging gentrification. Despite the infrequent reliance on
these statements, they could be powerful tools in antigentrification litigation.
In 1969, Congress passed the National Environmental Policy Act
(NEPA),126 which requires federal agencies to prepare an EIS in order to
consider the environmental impact of any of their proposed actions.127 Many
states have followed suit with some variation in how closely their statutes
follow the federal one.128 NEPA requires the government to consider the
impact on human health and welfare of any project proposed by a federal
agency.129 Nonetheless, the statute often does not have much force because it
is procedural only—it “requires the government to consider alternatives to
proposed actions and to consider measures that will mitigate the impacts of
125.
126.
127.
128.
129.
Renewed Look at Its Viability, 23 HOFSTRA L. REV. 539, 588–625 (1995). Nonetheless,
broadcasting litigation to enforce inclusionary zoning might strategically be a bad move since
it could result in counterarguments or backlash litigation that would undermine the ability to
have inclusionary zoning laws at all.
Mount Laurel I was decided in 1975, Township of Willistown v. Chesterdale Farms, Inc. was
decided in 1975, and Suffolk Housing Services v. Town of Brookhaven was decided in 1987.
42 U.S.C. §§ 4321–4370h (2006).
Kathleen Codey, Note, Convenience and Lower Prices, but at What Cost?: Watching Closely as
Discount Superstores Creep Into Manhattan, 13 J.L. & POL’Y 249, 270–71 (2005).
Id. at 272.
Stephen M. Johnson, NEPA and SEPA’s in the Quest for Environmental Justice, 30 LOY. L.A.
L. REV. 565, 579 (1997).
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the action, but it does not require the government to implement those
alternatives or mitigation measures.”130 For this reason, many states that have
passed EIS statutes have included substantive requirements, such as a
requirement that the government agency mitigate any harmful environmental
effects as much as is feasible.131 Some of these local statutes have also
expanded the reach of the EIS so that an EIS is required for most new
construction—including that done by private actors, not just governmental
agencies.132 Thus, depending on the state in question, an EIS may apply to
the majority of new developments. This means that an EIS requirement would
apply to new construction or to extensive rehabilitation that private developers
undertake in gentrifying neighborhoods.
The hurdle in using an EIS to challenge a new development being
contemplated in a gentrifying area is whether such a development would in
fact violate an EIS requirement. There are two ways to argue that new
construction in gentrifying areas violates an EIS requirement: The first would
be that the EIS quashes the development simply because the development
encourages gentrification. The second would be that, even if an EIS could
not be used to challenge gentrification per se, gentrification has enough
negative environmental effects that the EIS can quash any gentrifying
development based on those gentrification-related effects.
The first argument is certainly the harder one but there is some
precedent for it. In Chinese Staff & Workers Association v. City of New York,133
the state’s highest court was asked to interpret how the State Environmental
Quality Review Act (SEQRA)134 should be applied to a proposal to build a
luxury high-rise in New York City’s Chinatown.135 The court took a strong
stance that SEQRA’s requirement that there be a study of the development’s
impact on the environment included an assessment of the impact on the
130. Id. at 597.
131. See id. at 597–98. See, e.g., City of Walnut Creek v. Cnty. of Contra Costa, 101 Cal. App. 3d
132.
133.
134.
135.
1012, 1017–18 (1980) (finding that the county properly mitigated the environmental damage
of a project by reducing the density of the project).
See GLAESER, supra note 77, at 212 (“In 1973, an environmentally activist California
Supreme Court interpreted [the 1970 California Environmental Quality Act (CEQA)] to
mean not only projects undertaken by local governments, but also projects permitted by local
government, which means pretty much any large construction in the state.”). States where it
appears the EIS requirement applies to private developments include California, Hawaii,
Minnesota, South Dakota, and Washington. See Stewart E. Sterk, Environmental Review in
the Land Use Process: New York’s Experience With SEQRA, 13 CARDOZO L. REV. 2041, 2043
n.7 (1992).
68 N.Y.2d 359 (1986).
N.Y. ENVTL. CONSERV. LAW §§ 8-0101–8-0117 (McKinney 2012).
Chinese Staff & Workers Ass’n, 68 N.Y.2d at 362.
Challenging Gentrification
819
human environment, which included an assessment of the displacement of
current residents and businesses.136 The court reasoned that “the impact that
a project may have on population patterns or existing community character,
with or without a separate impact on the physical environment, is a relevant
concern in an environmental analysis since the statute includes these concerns
as elements of the environment.”137 The court went on to state that SEQRA
required a consideration of “long-term secondary displacement of residents
and businesses in determining whether a proposed project may have a significant
effect on the environment.”138 In short, the court held that the state’s EIS
required an assessment of whether a development would change the
community character—which, intuitively, could include the socioeconomic
and racial makeup—of the neighborhood and whether a development might
cause long-term displacement from the neighborhood. It is not a stretch to
state that the court held that SEQRA required an assessment of a project’s
gentrification impact before it could go forward.
While Chinese Staff & Workers Association at first glance is a powerful
precedent that could change when gentrifying developments can go forward,
its value is a bit questionable. The reasoning from Chinese Staff & Workers
Association may not be applicable to all state EIS requirements (for example, if
a state does not require an assessment of the “human environment” in its EIS,
then the New York court’s reasoning is not on point),139 and there has been
some backtracking even in New York to make clear that the far-reaching
analysis used in Chinese Staff & Workers Association is not to be applied to all
cases.140 Additionally, in order for a private development to come under the
136.
137.
138.
139.
See id. at 366–68.
Id. at 366 (footnote omitted).
Id. at 368.
In the alternative, a state simply might not interpret “human environment” as expansively as
was done in Chinese Staff & Workers Ass’n. Even New York courts have not always stuck with
the definition or considerations applied in Chinese Staff & Workers Ass’n. See Katherine
Ghilain, Note, Improving Community Character Analysis in the SEQRA Environmental Impact
Review Process: A Cultural Landscape Approach to Defining the Elusive “Community Character,”
17 N.Y.U. ENVTL. L.J. 1194, 1198–99 (2009) (noting that the State Environmental Quality
Review Act (SEQRA)’s “community character” is not defined and has been used
inconsistently).
140. See Long Island Pine Barrens Soc’y, Inc. v. Planning Bd. of Brookhaven, 606 N.E.2d 1373,
1379 (N.Y. 1992) (finding that the determinative factor in Chinese Staff & Workers Ass’n was
that the high-rise was going to be built in a special urban zoning district, not that the
determinative factor was simply the overall effects of the development). Additionally, even in
other states with expansive EIS statutes, those statutes do not always apply to situations often
relevant for gentrification. See Sean Stuart Varner, Note, The California Environmental
Quality Act (CEQA) After Two Decades: Relevant Problems and Ideas for Necessary Reforms, 19
PEPP. L. REV. 1447, 1463 (1992) (noting that California courts have held that the California
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authority of an EIS requirement, it usually must go through a zoning board
process—yet zoning regulations often attach to a development only when it is
part of a greater plan and not when it is being constructed on just one lot that
has been deemed an as-of-right development.141 This means, for example,
that the EIS might not be required if a landlord was simply pushing up rents
or turning units in an apartment building from affordable to market rate.
Thus, there are many states and situations in which using an EIS statute to
fight a development simply because it contributes to gentrification is not
feasible.
For these reasons, it is important to consider the second way to use an
EIS to challenge gentrification: whether there are specific environmental
effects of a gentrifying development that will usually trigger the application of
an EIS. This argument can be thought of in a few different ways. First, a
development that is advancing gentrification will ultimately cause displacement,
and displaced individuals may have to travel farther to work and to visit
friends and family.142 Such increased travel could heighten pollution, a clearly
harmful environmental effect.143 Second, when low-income families of color
are forced to move, there are often negative mental and physical health
impacts on those individuals.144 Even being displaced to areas with more
economic opportunity and less violence may cause headaches, weight gain,
emotional distress, and insomnia.145 An EIS usually must take account of the
141.
142.
143.
144.
145.
EIS statute, the California Environmental Quality Act (CEQA), does not apply to the
displacement of renters). In Topanga Beach Renters Ass’n v. Department of General Services, 58
Cal. App. 3d 188 (1976), in which a California court held that CEQA, did not apply to
renters, the court stated:
Adverse effect on persons evicted from Topanga Beach cannot alone invoke
the requirements of CEQA, for all government activity has some direct or
indirect adverse effect on some persons. The issue is not whether demolition
of structures will adversely affect particular persons but whether demolition of
structures will adversely affect the environment of persons in general.
Id. at 195.
Codey, supra note 127, at 296–97.
See GLAESER, supra note 77, at 87.
One of the purposes of the National Environmental Policy Act (NEPA) is to “fulfill the
responsibilities of each generation as a trustee of the environment for succeeding
generations.” 42 U.S.C. § 4331(b)(1) (2006). Causing more air pollution would clearly
identify a development as violating this purpose.
See Jason Corburn, Reconnecting With Our Roots: American Urban Planning and Public Health
in the Twenty-First Century, 42 URB. AFF. REV. 688, 699 (2007) (referencing a study that
“suggested that residential upheaval and lack of resettlement from urban renewal programs
continue to have mental and physical health impacts on African-Americans”).
Keene & Padilla, supra note 91, at 1221.
Challenging Gentrification
821
health impact it will have on individuals,146 and so pointing to the health
impacts of displacement that gentrification causes may trigger the application
of an EIS statute. While both of these strategies do not automatically attach
to any new development in a gentrifying area—an attorney challenging the
development would likely have to show how the development would
ultimately cause greater pollution or negative health outcomes for those
displaced—as long as such data about the impact of the development was
accessible, a court could find the need for an EIS.
Additionally, using these one-step-removed arguments to require an
EIS for a development in a gentrifying neighborhood addresses the most
common counterargument made against this legal strategy. Critics of a more
expansive use of an EIS (in which gentrification per se would be seen as an
environmental impact that should trigger an EIS) argue that “decisionmakers
use the environmental review process to delay, recast, or kill development
projects for ends unrelated to environmental goals”147 and that “[d]efining the
environment too broadly results in requiring impact statements . . . [that
impose] dead-weight social losses . . . [and that enable] interested parties to
use environmental statutes to serve nonenvironmental ends.”148 But if an
attorney is focusing on the fact that a development will cause displacement
that will result in an increase in air pollution and in negative health outcomes,
then it seems completely appropriate for an EIS to take into account the
gentrification (or more specifically, the displacement) the development might
cause over time.
146. Even NEPA, which is usually considered the most conservative of the EIS statutes, requires
an assessment of the health impact of a development. See 42 U.S.C. § 4331(b)(2) (“In order
to carry out the policy set forth in this chapter, it is the continuing responsibility of the
Federal Government to use all practicable means . . . to the end that the Nation may . . .
assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing
surroundings . . . . ” (emphasis added)). But see Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 773 (1983) (holding that “although NEPA states its goals in sweeping
terms of human health and welfare, these goals are ends that Congress has chosen to pursue
by means of protecting the physical environment”). Even though in Metropolitan Edison the
Court focused on the importance of the negative effects on the physical environment as a
prerequisite for a NEPA claim, in that case the negative effects asserted by the plaintiffs were
the psychological harms of living near a nuclear plant. Id. at 769. Thus, there still seems to
be room to argue that if a development had effects that caused physical rather than
psychological harms to individuals, NEPA could be invoked. See Friends of Boundary
Waters Wilderness v. Dombeck, 164 F.3d 1115, 1126–1127 (8th Cir. 1999) (finding that in
certain situations, even under the precedent of Metropolitan Edison, NEPA can be used to
address the health concerns of residents).
147. Sterk, supra note 132, at 2055.
148. Id. at 2060.
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Thus, an attorney could use NEPA or a state EIS requirement to fight
new developments that landlords are attempting to build in gentrifying
neighborhoods. While an EIS often is only a procedural tool that may not
ultimately stop the development from being built, it can help slow down
gentrification, giving community members more time to organize to stop the development. The community then can assess whether the benefits of a new
development149 would outweigh possible costs, such as subsequent rising rents
in the surrounding area and displacement. This puts control back in the
hands of the residents affected by the new development rather than in the
hands of developers who likely care more about their profits than their longterm effects on a community.
C.
Preserving Community Through Litigation: Novel Use of the Fair
Housing Act
The FHA, also known as Title VIII,150 bans discrimination on the basis
of race in the sale or rental of housing, in housing preferences, in
blockbusting, and in lending.151 The FHA was originally passed in 1968,
within days of the assassination of Martin Luther King, Jr. and of the release
of a presidential commission’s report blaming housing segregation for the
1967 race riots.152 As a result of the quick passage of the bill, there is little
legislative history that courts can look to when interpreting the statute.153
Courts have mostly referenced supportive legislators’ comments from the
Senate floor, such as Senator Jacob Javits’s statement that “the whole
community” can be the victim of discriminatory housing practices and
Senator Walter Mondale’s statement that the law’s purpose is to replace
ghettos with “truly integrated and balanced living patterns.”154 Thus, courts
tend to interpret the statute by focusing on whether the challenged action
encourages or undermines integration. Because gentrification often has a
racial element, attorneys could challenge the gentrification of a neighborhood
through claims under the FHA to preserve affordable housing inhabited by
low-income residents of color and to prevent resegregation.
149. As discussed above, a new development in a neighborhood may contribute to the
150.
151.
152.
153.
154.
revitalization of an underresourced neighborhood without being a harbinger of gentrification,
or at least the sort of gentrification that will cause widespread displacement. See supra Part II.
42 U.S.C. §§ 3601–3631 (2006).
See DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 445 (6th ed. 2008).
Hannah-Jones, supra note 2.
See ROBERT G. SCHWEMM, HOUSING DISCRIMINATION: LAW AND LITIGATION § 5:2 (2012).
E.g., Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972).
Challenging Gentrification
823
The most promising FHA provision for challenging gentrification is
§ 3604(a), which makes it unlawful “[t]o refuse to sell or rent . . . or to refuse
to negotiate for the sale or rental of, or otherwise make unavailable or deny, a
dwelling to any person because of race . . . .”155 This broad language has been
interpreted to cover any practice that denies housing or negatively affects its
availability “because of” race.156 Circuit courts have ruled that this language
refers to intentional discrimination in housing transactions, to mixed motive
housing transactions in which intentional discrimination is one among several
reasons for a party’s actions, and to housing transactions that cause disparate
effects on the groups the FHA protects.157 It is doubtful that evidence of
intentional racial discrimination will exist in the progentrification policies or
actions of landlords and developers (and when such evidence exists, it will be
much easier to prove a violation of the FHA), so this Comment assesses how
attorneys could use the disparate effects cause of action to challenge
gentrifying policies and actions.
In disparate effects cases, plaintiffs can make their claim based on one or
both of two theories: (1) that the housing transaction in question will have a
greater adverse impact on a protected class (such as racial minorities) or (2)
that the housing transaction in question perpetuates segregation.158 Under
the adverse impact theory, the plaintiff must be challenging an entire practice
or policy rather than an act targeting only one individual and must show the
statistical significance of the action on protected class members.159 Under the
155. 42 U.S.C § 3604(a) (2006). There has also been recent interest in using § 3608 of the statute
156.
157.
158.
159.
in novel ways in order to preserve or create affordable housing. See Robert G. Schwemm,
Overcoming Structural Barriers to Integrated Housing: A Back-to-the-Future Reflection on the
Fair Housing Act’s “Affirmatively Further” Mandate, 100 KY. L.J. 125 (2012). This section of
the statute mandates that governmental departments and agencies must administer their
programs in a manner that affirmatively furthers fair housing. 42 U.S.C § 3608(d) (2006). I
will not discuss this provision in this Comment because it only applies to the actions of
governmental agencies, and could not be used to challenge the actions of private landlords
and developers that foster gentrification. Additionally, it might be difficult to bring cases
under § 3608 because there is no private right of action under that provision, at least as
understood in some circuits. See Latinos Unidos de Chelsea en Accion (LUCHA) v. Sec’y of
Hous. & Urban Dev., 799 F.2d 774, 792 (1st Cir. 1986).
SCHWEMM, supra note 153, § 13:4.
See, e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir. 1979) (stating that
conduct for which discrimination is just one of the motivating factors violates the FHA);
United States v. City of Black Jack, 508 F.2d 1179, 1184–85 (8th Cir. 1974) (finding that an
FHA violation may be shown by conduct that has a discriminatory effect/impact); Seaton v.
Sky Realty Co., 491 F.2d 634, 635–36 (7th Cir. 1974) (upholding a district court’s finding
that intentional discrimination violates the FHA).
SCHWEMM, supra note 153, § 10:5.
Id. § 10:6.
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perpetuation of segregation theory, the plaintiff may challenge one
discriminatory act or an entire practice or policy and must present evidence of
the segregative effect the housing transaction would have.160 Both of these
theories seem applicable to challenging gentrification. When removing
housing from affordability programs in gentrifying neighborhoods has an
adverse effect on residents of color in many instances,161 attorneys could
challenge such an action under the adverse impact theory. And when a
broader array of actions—not only removing housing or units from
affordability programs, but also building luxury developments—causes
resegregation of a neighborhood through white residents replacing residents
of color, attorneys could challenge such actions under the perpetuation of
segregation theory. The next two subsections address each of these possible
claims in greater detail.
1. The Adverse Impact Theory
The first cause of action under § 3604 of the FHA, challenging an act
that causes an adverse impact on residents of color, could be used to preserve
affordable housing in gentrifying neighborhoods. Because people of color
disproportionately reside in affordable housing,162 taking a building out of an
affordable housing program would likely have the sort of adverse impact
against racial minorities that the FHA prohibits since a disproportionate
160. Id. § 10:7. The segregative effect must be shown within a substantially discrete community.
So, while plaintiffs have successfully been able to show impermissible segregative effects on a
building- or neighborhood-wide scale, plaintiffs’ claims may be rejected if they are trying to
argue that the segregative effect will take place across an entire city. Compare Gladstone,
Realtors v. Vill. of Bellwood, 441 U.S. 91, 113-114 (1979) (finding standing for plaintiffs in
a FHA case who were challenging the housing practice by referencing changes to a 12-by-13
block neighborhood), with Havens Realty Corp. v. Coleman, 455 U.S. 363, 377 (1982)
(finding it implausible to argue in a FHA case that the discriminatory actions could have
palpable effects throughout an entire city).
161. Generally, residents of color disproportionately occupy affordable housing. For example, in
project-based Section 8 housing (buildings in which a private landlord contracts with the
federal government to provide affordable housing), 42 percent of tenants are black while only 13
percent of the U.S. population overall is black. U.S. DEP’T OF HOUS. & URBAN DEV.,
RESIDENT CHARACTERISTICS REPORT (2014), available at https://pic.hud.gov/pic/RCRPublic/
rcrmain.asp (choose "Project Based Certificate and Project Based Voucher” as the selected program
type, then click on “National,” and finally click on the “Race/Ethnicity” tab to retrieve data); KAREN
R. HUMES ET AL., U.S. CENSUS BUREAU, OVERVIEW OF RACE AND HISPANIC ORIGIN:
2010, at 4 (2011), available at www.census.gov/prod/cen2010/briefs/c2010br-02.pdf.
162. See supra note 161. People of color also disproportionately utilize public housing (governmentowned affordable housing). SOC. SEC. ADMIN., OFFICE OF RESEARCH, EVALUATION &
STATISTICS, SOCIAL SECURITY PROGRAMS IN THE UNITED STATES 100 (1997),
available at http://www.socialsecurity.gov/policy/docs/progdesc/sspus/sspus.pdf.
Challenging Gentrification
825
number of people of color would lose their housing from such an action.
There are already some FHA cases that show that vacating, demolishing, or
not renewing the contract of affordable housing complexes violates the law
under the adverse impact theory. While this cause of action applies just as
directly in gentrifying neighborhoods as in nongentrifying ones, it could be
utilized strategically in gentrifying neighborhoods to ensure that minority
residents aren’t displaced from their homes.
Attorneys could rely on a few key precedents that have found that
removing a building from affordability violates the FHA. For example, in
Owens v. Charleston Housing Authority,163 a district court in Missouri held that
the decision to vacate and demolish an affordable housing complex violated
the FHA because of the disparate racial impact those actions would have.164
Remarkably, the court ordered an injunction directing the landlord to
continue operating the complex as affordable housing,165 and the Eighth
Circuit later affirmed the district court’s order and its analysis of the FHA.166
This is exactly the sort of outcome that community members might desire
when challenging gentrification: a ruling that not only establishes that forcing
low-income residents out of an affordable housing complex violates the FHA,
but also requires the landlord to continue to provide affordable housing for
those residents. A similarly helpful precedent is Cole v. Lynn,167 in which a
Washington, D.C. district court held that the FHA prohibits landlords from
withdrawing their complexes from affordability programs if there are other
economically feasible options available—such as switching to a different
affordability program or selling the complex.168 Advocates in gentrifying
neighborhoods could argue that preserving affordable housing units is
economically feasible—after all, if a landlord has been operating an affordable
building or unit for a number of years, it seems economically feasible that he
could continue to do so—and so removing buildings or units from
affordability programs violates the FHA. This is an especially persuasive
argument when used to preserve federally assisted affordable housing because
163.
164.
165.
166.
167.
168.
336 F. Supp. 2d 934 (E.D. Mo. 2004).
Id. at 943.
Id. at 949.
Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 741–42 (8th Cir. 2005).
389 F. Supp. 99 (D.D.C. 1975).
Id. at 103–05. But it appears that if it is not economically feasible to keep a building in an
affordability program, there is no duty under the FHA to do so. For example, in Sadler v.
218 Housing Corp., 417 F. Supp. 348 (N.D. Ga. 1976), the affordable housing was
uninhabitable and needed significant and expensive rehabilitation to remain open, and in part
based on these reasons the court held that the landlord did not violate the FHA by
demolishing the building. Id. at 357–59.
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usually the federal government is willing to pay a landlord market-rate rents
as part of a subsidy to keep the building or unit in the affordability program.169
Of course, some courts have been less willing to preserve affordable
housing under the adverse impact theory of the FHA. One of the most
convincing pro-landlord arguments is from Hallmark Developers, Inc. v.
Fulton County170 in which the Eleventh Circuit held that it was speculative to
presume the racial makeup of who would move into yet-to-be-built housing,
and thus the court couldn’t assume that the county’s refusal to provide a
permit for affordable housing would have a disparate racial impact (and thus
violate the FHA).171 While it is well-argued that it is quite speculative to
assume the effect on racial demographics a housing decision will have down
the line, even the Eleventh Circuit found that there was a difference between
refusing to build affordable housing and preserving existing affordable
housing. The court referenced two seminal FHA cases, Huntington Branch,
NAACP v. Town of Huntington172 and Metropolitan Housing Development
Corp. v. Village of Arlington Heights,173 and noted that an FHA disparate effects
claim could succeed when it was known that there was a shortage of housing for
the defined group of residents who needed the sort of affordable housing
already in existence.174 Considering that fewer than one in four families who
qualify for affordable housing programs actually utilize them,175 and that
residents of color disproportionately live in affordable housing, it is practically
a known rather than speculative fact that not preserving affordable housing
will have an adverse effect on people of color. If people of color disproportionately
live in affordable housing as compared to market-rate housing and a building
or unit is converted from affordable housing to market-rate housing, then the
conversion more likely than not has the effect of displacing a resident of color
and replacing that resident with a white individual. Thus, the removal of
169. For example, the federal government will allow landlords of project-based Section 8 buildings
170.
171.
172.
173.
174.
175.
to go through the “Mark Up to Market” program, which renews their contracts with the
federal government to reflect competitive market-rate rents. See Section 8 Contract Renewals, NAT’L
HOUSING L. PROJECT, http://nhlp.org/resourcecenter?tid=120 (last visited Mar. 30, 2014).
466 F.3d 1276 (11th Cir. 2006).
Id. at 1286–87.
844 F.2d 926, 929 (2d Cir. 1988) (using an analysis of the shortage of affordable housing in
the town to ultimately support the finding of an FHA violation).
558 F.2d 1283, 1288 (7th Cir. 1977) (implying there is a need for more affordable housing in
the town before ultimately finding the possibility of an FHA violation).
Hallmark Developers, Inc., 466 F.3d at 1287.
See WILL FISCHER, CTR. ON BUDGET & POLICY PRIORITIES, CONVERTING FUNDING OF
SOME PUBLIC HOUSING DEVELOPMENTS TO SECTION 8 SUBSIDIES WOULD HELP
PRESERVE NEEDED UNITS 2 (2011), available at http://www.cbpp.org/files/3-25-11hous.pdf.
Challenging Gentrification
827
housing from affordability programs certainly seems to violate the adverse
impact cause of action of the FHA.
Although it may be straightforward enough (armed with the right data
about the racial demographics of the residents of affordable housing) to argue
that removing housing from affordability programs violates the FHA because
of its disparate effects on racial minorities, it is less clear how to remedy such
potential removal. In Owens v. Charleston Housing Authority, as discussed
above, the court ordered the landlord to remain in the affordability
program—but the court may have felt justified to put forth such an order
because, at that moment in the building’s history, a governmental agency was
the owner and landlord of the building176 and so such an order did not
interfere with the property rights of a private individual. But in People to End
Homelessness v. Develco Singles Apartments Ass’n,177 the First Circuit held that
the FHA, by its plain meaning, could not force a private owner to preserve the
long-term affordability of his complex.178 There is some tension between the
fact that removing a building or unit from affordability may violate the FHA
and mandating that a landlord remain in the affordability program may
violate his property rights.
Yet even while recognizing this potential problem, it seems possible that
housing advocates could successfully litigate an adverse impact claim against a
private landlord. Courts have upheld other types of regulations in landlordtenant relations (such as allowing the government to regulate the rents that
landlords can charge and forcing landlords to accept tenants they would not
otherwise), and the government generally has the power to regulate private
discrimination.179 Additionally, the justification put forth by landlords for
why they would want to remove buildings or units from affordability
programs—that they could make more money from the units if they were not
a part of an affordability program—can be defeated. When courts have
allowed a cost-justification argument to succeed, it has only been when the
landlord put forth a clear estimate about why complying with the
176.
177.
178.
179.
Owens v. Charleston Hous. Auth., 336 F. Supp. 2d 934, 939, 949 (E.D. Mo. 2004).
339 F.3d 1 (1st Cir. 2003).
Id. at 5.
Nat’l Hous. Law Project, Fair Housing Litigation to Prevent the Loss of Federally Assisted
Housing: The Duties of Public Housing Authorities and Project Owners—Part Two of Two
Articles: Obtaining Data, Formulating Claims and Anticipating Objections (pt. 2), 31 HOUSING
L. BULL. 157, 170–71 (July/Aug. 2001). See generally Pennell v. City of San Jose, 485 U.S. 1,
11–15 (1988) (finding a rent control ordinance that restrains by how much a landlord can
raise rents facially valid under the U.S. Constitution); United States v. Page Props., Inc., 198
F.3d 252, 1999 WL 475563, at *1 (8th Cir. July 6, 1999) (upholding a district court’s order
that a landlord choose its tenants in compliance with the FHA).
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nondiscrimination mandate would be prohibitively costly.180 A general
assertion that it is financially more advantageous for the landlord to remove
his building from an affordability program probably would not win in
court.181 Thus, litigation based on the FHA cause of action concerning
adverse impact on minority residents likely could successfully challenge the
removal of affordable housing from gentrifying neighborhoods.
2. The Perpetuation of Segregation Theory
The other cause of action under the FHA disparate effects claim, that a
policy or an action is perpetuating segregation, is particularly powerful in the
context of a neighborhood that has already gone through enough
gentrification to significantly affect its racial demographics. Some courts
have not found violations of the FHA when the proposed action, such as
removing housing from affordability programs, takes place in a minoritymajority neighborhood that is so racially monolithic that higher-income
white individuals moving in would result in greater integration.182 But if a
neighborhood has gentrified to the extent that the affordable housing houses
a significant proportion of the minority residents because the other residents
of color have already been displaced by higher-income white residents, then
the loss of such affordable housing will clearly result in a whiter—that is,
resegregated—neighborhood. Additionally, this cause of action is not
dependent on a building being removed from its affordability program. Any
action that would ultimately resegregate the neighborhood, such as building a
new luxury development, could act as the catalyst to bring this sort of FHA claim.
180. See, e.g., United States v. Weiss, 847 F. Supp. 819, 831 (D. Nev. 1994) (finding that requiring
a landlord to spend $1.63 million dollars to upgrade the hot water capacity so that the landlord
would not have to limit the number of families with children—a protected class under the
FHA—in the building was unwarranted under the FHA); Sadler v. 218 Hous. Corp., 417 F.
Supp. 348, 358 (N.D. Ga. 1976) (finding that HUD considered all other economic options
before deciding to remove the building from affordability).
181. This hypothesis is bolstered by the fact that when interpreting Title VII law, which
sometimes is imported when interpreting the FHA, courts have generally not upheld a cost
justification defense (when an employer tries to defend a discriminatory practice by noting
the practice reflects real costs to the employer). See, e.g., UAW v. Johnson Controls, Inc.,
499 U.S. 187 (1991); City of L.A. v. Manhart, 435 U.S. 702 (1978).
182. See, e.g., Sadler, 417 F. Supp. at 357–59 (holding that there was no FHA violation when a
landlord wanted to remove a building from an affordability program and give minority
tenants portable vouchers because the neighborhood in which the building existed was
racially monolithic, and so having minority residents move to new neighborhoods would
promote integration more successfully than having them stay).
Challenging Gentrification
829
Like with the adverse impact cause of action, attorneys have not often
used the perpetuation of segregation cause of action to challenge further
gentrification of a neighborhood although there are a few examples of such
litigation. In 1983, minority residents living near downtown Boston
challenged the development of a huge commercial complex, Copley Place,
which they argued would ultimately cause rents to rise in their neighborhoods,
displacing them and resulting in resegregation of their neighborhoods as
more white residents moved in.183 The court held that the residents whose
neighborhoods would be resegregated as a result of rising rents and
displacement had standing to go forward with the case.184 In 1987, tenants in
Washington, D.C. challenged the conversion of their affordable housing into
high-rent units in Brown v. Artery Organization, Inc.185 While the court
worried that assessing such conversions under the adverse impact theory of
the FHA would always lead to the halting of upgrades or conversions of
affordable housing, which it argued was not the intent of Congress in passing
the FHA,186 it did hold that under the perpetuation of segregation theory
such conversions could be stopped when they would cause resegregation of
the neighborhood, and so the court denied the defendant’s motion to
dismiss.187 Another example is Pleune v. Pierce188 in which minority residents
in Brooklyn challenged the building of Atlantic Terminal, a huge development including office space, retail space, a cinema, a supermarket, and
residential units for moderate-income families.189 Again, the court found that
the residents did not have a cognizable claim under the adverse impact theory,
but they could bring an action against the new development under the theory that
the project would result in the loss of an integrated neighborhood.190
Ultimately, these cases and others established fairly early in the FHA’s
history that the FHA should be used to prevent segregated ghettoes and to
183. Munoz-Mendoza v. Pierce, 711 F.2d 421, 426–28 (1st Cir. 1983).
184. Id. at 429. Interestingly, the court ruled that the plaintiffs representing Chinatown—which
185.
186.
187.
188.
189.
190.
had a population that was 80 percent Asian and Asian American—did not have standing
under the perpetuation of segregation claim under the FHA because more white residents in
Chinatown would lead to more, rather than less, integration in that neighborhood. Id. at
428–29.
654 F. Supp. 1106, 1108–09 (D.D.C. 1987).
Id. at 1116.
Id. at 1118.
697 F. Supp. 113 (E.D.N.Y. 1988).
Id. at 114.
Id. at 117.
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guard against lack of opportunity for minority racial groups.191 Thus, the
perpetuation of segregation cause of action under the FHA is particularly well
suited for challenging acts that have a gentrifying effect on a neighborhood.
Under the FHA, a plaintiff should be able to sue for any actions that will
resegregate a neighborhood, which includes many actions that take place
during gentrification, such as the removal of housing from affordability
programs and the building of luxury developments. This cause of action is
especially useful when a neighborhood has already undergone a significant
amount of gentrification. If a neighborhood has been gentrified to the point
where it is relatively integrated (that is, the neighborhood was majorityminority but because of gentrification has come to have a significant white
population), then this cause of action can stop further gentrification that would
result in a mostly white neighborhood. Additionally, the fact that courts
sometimes point out that the FHA was supposed to protect against lack of
opportunities for racial minorities might be especially helpful in gentrification
cases since most people being displaced have to move farther away from city
centers—and thus from an area dense with job opportunities and public
transit. For these reasons, bringing lawsuits under the perpetuation of segregation
theory of the FHA could be a powerful and particularly successful tool in
challenging gentrification.
Unfortunately, the greatest drawback with asserting both perpetuation
of segregation and adverse impact claims in the fight against gentrification is
that it seems quite likely the Supreme Court will soon restrict the breadth of
disparate impact FHA claims or prohibit them altogether. In the last few
years the Court has thrice granted a writ of certiorari to assess whether
disparate impact claims are cognizable under the FHA—for Magner v.
Gallagher192 in 2011, for Township of Mount Holly v. Mount Holly Gardens
Citizens In Action, Inc.193 in 2013, and for Texas Department of Housing and
Community Affairs v. The Inclusive Communities Project, Inc.194 in 2014. The
only reason the Court has not yet ruled on the permissible breadth of FHA
claims is because the parties in Magner and Township of Mount Holly voluntarily
191. See, e.g., Williamsburg Fair Hous. Comm. v. N.Y.C. Hous. Auth., 450 F. Supp. 602, 606
(S.D.N.Y. 1978) (noting that the goal of the FHA is to promote “open, integrated residential
housing patterns and to prevent the increase of segregation, in ghettoes, of racial groups
whose lack of opportunities the Act was designed to combat” (quoting Otero v. N.Y.C.
Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973))).
192. 132 S. Ct. 548 (2011).
193. 133 S. Ct. 2824 (2013).
194. 747 F.3d 275 (5th Cir. 2014), cert. granted in part, 82 U.S.L.W. 3686 (U.S. Oct. 2, 2014)
(No. 13-1371).
Challenging Gentrification
831
dismissed their cases before a decision was rendered.195 Considering the
conservative bent of this Supreme Court,196 the Court may restrict or prohibit
disparate impact FHA claims if given the chance. While claims based on the
FHA make the most traditional legal arguments and have the strongest
existing precedent for fighting gentrification, they soon may not be a tool that
housing attorneys can rely on.
CONCLUSION
As data from the 2010 census shows, gentrification is a growing
phenomenon in American cities. Higher-income residents—who are usually
white—are moving into affordable inner-city neighborhoods. They drive up
property taxes and rents, ultimately forcing out the low-income residents who
cannot afford such increases in their housing payments. Even tenants living
in affordable housing, whose rent is subsidized or regulated by the
government, are often pressured by their landlords to move so that landlords
can charge new higher-income tenants the rapidly rising market rate for
residency.
Such gentrification is a complex, multifaceted process. Public officials,
organizers, policy makers, and low-income residents are key in addressing if,
when, and how gentrification should occur in the inner city. Attorneys may
also be able to play an important role in challenging gentrification. Three sorts of
litigation seem particularly ripe for fighting gentrification. First, litigation
could be used to enforce inclusionary zoning laws or to push state
constitutions to incorporate a right to affordability-friendly zoning
regulations. Second, litigation based on federal and state EIS requirements
could challenge new luxury developments proposed in gentrifying
neighborhoods by noting the sorts of environmental harms gentrification
causes. Third, litigation based on the FHA’s prohibitions on housing actions
that have an adverse impact on racial minorities and that perpetuate
segregation could be used to preserve affordable housing in gentrifying areas
and to halt the building of luxury developments in gentrifying areas.
195. Twp. of Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., 134 S. Ct. 636
(2013); Magner v. Gallagher, 132 S. Ct. 1306 (2012).
196. See Michael Keegan, We Have the Most Conservative Supreme Court in Decades. Why Do Americans
Think It’s Liberal?, HUFFINGTON POST (July 24, 2013, 5:12 AM), http://www.huffington
post.com/michael-b-keegan/we-have-the-most-conserva_b_3333337.html.
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The socioeconomic and racial diversity of cities is being decimated as
higher-income white residents occupy more space in these cities. Civil rights
advocates and their followers who fought for integration of suburbs should be
just as concerned with the current resegregation of cities as they were with the
existence of all-white suburbs and towns. Attorneys can and should develop
novel ways to assist in ensuring integration in the inner city. This Comment
hopes to contribute to the dialogue among housing attorneys concerning
litigation tools that can aid low-income residents who challenge the
gentrification occurring in their neighborhoods.